Smith v. Hard

• Decision Date: 14 March 1887
• Citation: 59 Vt. 13,8 A. 317
• Court: Vermont Supreme Court
• Parties: SMITH v. HARD.

8 A. 317

59 Vt. 13

SMITH

v. HARD.¹

Supreme Court of Vermont.

March 14, 1887.

Exceptions from Bennington county court, June term, 1885; Walker, J., presiding. Action by plaintiff, as collector of taxes for the town of Arlington, to recover of the defendant taxes assessed on the lists of 1881, 1882, 1883. Plea, general issue. Trial by jury. The court directed a verdict for defendant. Heard at general term, 1886.

Batchelder & Barber, for plaintiff.

Burton & Munson and J. C. Baker, for defendant.

POWERS, J. The plaintiff seeks to recover certain taxes assessed against the defendant on the grand lists of Arlington for the years 1881, 1882, and 1883. To prove the assessment of such taxes for the years 1881 and 1882, the plaintiff offered in evidence the grand lists of those years, and it appeared that the preliminary oath of the listers taken for those years was not subscribed by them as required by section 329, E. L., which provides that each lister, before entering upon the duties of his office, shall take and subscribe the following oath, etc. It appeared that the listers in fact took the preliminary oath, and the jurat of the magistrate attesting the fact was attached to said grand lists. In connection with said grand lists the plaintiff offered in evidence act No. 229 of the Laws of 1882, which purported to legalize said grand lists for the years 1881 and 1882.

Passing the question whether the mere omission of the listers to subscribe their names to the preliminary oath, which had been confessedly duly taken, was an omission of a matter of substance which would invalidate their official acts, we come to a consideration of the effect of the act of the legislature legalizing said lists. It is agreed that the power of taxation is exclusively a legislative power. Circumscribed only by constitutional limitations, the legislature is the sole judge of the system and procedure proper for the assessment and collection of public taxes. For municipal purposes, it has delegated the power to towns, and prescribed the regulations under which it may be exercised. One of the regulations is that the listers, in making up the grand list of a town, shall take and subscribe the preliminary oath in question. The exact question, then, presented is whether the legislature, having fixed the form and attestation of the listers' preliminary oath, can, by subsequent act, validate a grand list made up by the listers, who have omitted to verify the taking of their oath of office by subscribing their own names thereto.

It is fully established on authority that the legislature may pass retrospective laws unless prohibited in terms by the constitution, or unless they are violative of vested rights affecting substantial equities. Cooley, Const. Lira. (2d Ed.) 369; 2 Desty, Tax'n, 607; Tifft v. Buffalo, 82 N. Y. 204; Bellows v. Weeks, 41 Vt. 590; and many other cases cited by plaintiff. This doctrine is everywhere extended to irregularities in the assessment of property for purposes of taxation, and the levy of taxes thereon. Bellows v. Weeks, supra; Butler v. Toledo, 5 Ohio St. 225; Cooley, Const. Lim. 371.

In Tunbridge v. Smith, 48 Vt. 648, the judge delivering the opinion, inadvertently, no doubt, uses the expression that a healing statute does not cure the invalidity of taxes assessed upon a defective grand list before it was legalized. This proposition is in conflict with the whole line of authorities, and on principle cannot be sound. The defendant in this case has no vested right of defense based upon an informality in his assessment which does not affect his substantial equities. Cooley, Const. Lim. 370. He was a tax-payer in Arlington, and legally bound to contribute his ratable share towards the revenues of this town. He is not seeking to escape therefrom upon any claim that he was unduly assessed, or oppressively burdened, but solely on the technical ground that the listers have failed to observe a comparatively unimportant formality in making up the grand list, not in the least prejudicial to him, and operating, if operative at all, upon the lists of all other tax-payers precisely as upon his. His grand list was in fact made, by officers under oath, and any violation of that oath would make them answerable in criminal proceedings equally well whether they subscribed their oath or not. The taxpayer has as much security in the one case as in the other.

The curative statute manifestly reaches back to taxes already assessed, as well as to those thereafter to be assessed. The principle upon which this kind of legislation is upheld, is that what the legislature might properly have done before the assessment it may, by relation, do afterwards. Judge Cooley formulates the doctrine as follows: "If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by a prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute." The legislature might have dispensed with the requirement that the listers subscribe their official oath, and, indeed, it was never required until 1872. When, therefore, the healing act of 1882 was passed, it cured the informality that resulted from their neglect to subscribe the preliminary oath, and thereafter the case stands as if no such subscription to the oath had ever been required; and, as this oath antedates in time the assessment of the defendant's taxes, the curative statute has legal relation and effect as of the time such oath was taken. That the curative act should apply to taxes already assessed is clearly shown by the case of Bellows v. Weeks, supra.

In Grim v. School-district, 57 Pa.St. 433, it was held that a suit brought to recover taxes paid under protest on an unlawful list was defeated by a subsequent curative statute; and many other cases illustrating the doctrine that the defendant has no vested right of defense to the taxes assessed against him prior to the passage of the curative act are referred to in all the works treating of this subject, and they all point in one direction. Bacon v. Callender, 6 Mass. 303; Butler v. Palmer, 1 Hill, 324; Miller v. Graham, 17 Ohio St. 1; Watson v. Mercer, 8 Pet. 88; Mather v. Chapman, 6 Conn. 54; People v. Supervisors Ingham Co, 20 Mich. 95; Yeaton v. U. S., 5 Cranch, 281.

It was error, therefore, to exclude the evidence offered to show the taxes assessed against the defendant in the years 1881 and 1882.

A different question arises in respect to the taxes assessed against the defendant in 1883.

The defendant objected to his assessment for 1883 on the ground that no abstract of the personal lists of the tax-payers was lodged in the town clerk's office, as required by law, and that, therefore, the grand list of that year was invalid. The plaintiff's evidence tended to show that a paper containing a list of names arranged in alphabetical order, and columns for polls, personal property, and offsets, was lodged in the town clerk's office, April 25, 1883, as such...